The Yale Law Journal Company, Inc.

Constitutional Law. Searches and Seizures. Fourth and Fifth Amendments no Protection fromWrongful Acts of IndividualsSource: The Yale Law Journal, Vol. 31, No. 3 (Jan., 1922), p. 335Published by: The Yale Law Journal Company, Inc.Stable URL: http://www.jstor.org/stable/789070 .

Accessed: 24/05/2014 01:44

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and extend access toThe Yale Law Journal.

http://www.jstor.org

This content downloaded from 195.78.108.157 on Sat, 24 May 2014 01:44:24 AMAll use subject to JSTOR Terms and Conditions

CURRENT DECISIONS

CONSTITUTIONAL LAW-POLICE POWER AND EMINENT DOMAIN DISTINGUISHED.-

An act of a legislature authorized the defendant counties jointly to improve a river separating the two to prevent floods. The result of straightening the chan- nel was the erosion of the plaintiff's land. The plaintiff brought an action for damages. Held, that the defendant counties were not excused by virtue of the police power, the controlling purpose being the protection of the defendant's roads and bridges and not the public health, peace, morals, or welfare. Conger v. Pierce County (1921, Wash.) I98 Pac. 377.

In dealing with a difficult problem the court has reached a logical and just result. No satisfactory test has yet been found by the courts to determine when an injury to property constitutes a taking under eminent domain and when it is to be justified under the police power. For a discussion of these principles, see Freund, Police Power (1904) sec. 511-517.

CONSTITUTIONAL LAW-SEARCHES AND SEIZURES-FOURTH AND FIFTH AMEND- MENTS NO PROTECTION FROM WRONGFUL ACTS OF INDIVIDUALS.-The plaintiff's private papers were stolen and turned over by the thief to the defendant, a government official. The plaintiff filed a petition asking for the return of these papers and for an injunction against their use as evidence. The trial court granted the petition and the defendant appealed. Held, that the order should be reversed as the Fourth and Fifth Amendments protected the individual only against the action of the Federal Government. Burdeau v. McDowell (1921) 41

Sup. Ct. 574. Had the papers been taken by government agents the plaintiff would have been

protected. See (1921) 30 YALE LAW JOURNAL, 769. But the court correctly points out that the Fourth and Fifth Amendments are no protection from the wrongful acts of private individuals. See Weeks v. United States (1914) 232 U. S. 383, 398, 34 Sup. Ct. 341, 346. The Constitution not being violated, it is no objection to the use of the evidence that it was illegally acquired. Benson v. State (1921, Ark.) 233 S. W. 758; Briscoe v. State (1921, Ark.) 233 S. W. 76i.

CONTRACTS-ILLEGALITY OF SALE OF INTOXICATING LIQUORS.-The plaintiff pur- chased whiskey containing wood alcohol. Being blinded by drinking it, he sued the seller's administratrix for damages, alleging an implied warranty of whole- someness. Held, that as a contract for the sale of whiskey is illegal, it can not be made the basis of a cause of action. Harkins v. Provenzo (1921, Sup. Ct.) I89 N. Y. Supp. 258.

The court relies on the general rule that an illegal contract will not be enforced. Teachout v. Bogy (1917) 175 Calif. 48i, i66 Pac. 3i9. The unlawful act is the sale of liquor and it is said that the injury is caused by drinking it and not by its sale, an ingenious non sequitur. Britton's Adm'r. v. Samuels (i9ii)

i43 Ky. 129, 136 S. W. 143. Even at common law a purchaser had no right to damages for injuries caused by his drinking liquor which had been sold to him. Couchman v. Prother (1904) i62 Ind. 250, 70 N. E. 240; Buntin v. Hutton (1917)

2o6 Ill. App. I94.

DAMAGES-BANKS AND BANKING-LIABILITY OF BANK TO FIDUCIARY FOR

WRONGFUL DISHONOR OF CHECKS.-The defendant bank improperly dishonored a check drawn by the plaintiff upon a deposit standing in his name as treasurer of a church. Held, that the plaintiff was entitled to substantial damages, but temper- ate in amount. De Launay v. Union Nat. Bank (192I, S. C.) I07 S. E. 925.

[3351

This content downloaded from 195.78.108.157 on Sat, 24 May 2014 01:44:24 AMAll use subject to JSTOR Terms and Conditions